Payout for Dog Food Prank?

Amid swirling rumors that City Attorney Rocky Delgadillo is hoping to settle the lawsuit filed by black firefighter Tennie Pierce, new court filings have emerged that have once again pitted the 51-year-old Cerritos resident against his former Los Angeles Fire Department colleagues.

Pierce filed a lawsuit in 2005 alleging that he was fed dog food by his co-workers at Los Angeles city Fire Station 5 as part of a racially motivated prank. Last fall, the city council agreed to pay Pierce $2.7 million in public funds, but the controversial settlement was scuttled after photos emerged showing Pierce spraying water into the face of one strapped-down firefighter, smearing shaving cream around the groin area of another strapped-down firefighter, and gleefully laughing at a firefighter who had been wrapped in a bed sheet on which the hazers had scrawled, “Oy Vey! I’m Gay!”

A three-month investigation by the L.A. Weekly (read “What Really Happened at Fire Station 5?,” March 16–22) showed that race was not part of the dog-food incident, and, instead, that on the day of the prank against him Pierce had good-naturedly harangued a firefighter who decided to lace Pierce’s spaghetti with dog food as a joke.

Last week, the City Attorney’s office sent a letter to members of the city council, the city Claims Board and the council’s Budget and Finance Committee, asking to meet in closed session to discuss a settlement with Pierce’s attorney Genie Harrison. The case is scheduled to go to trial September 24.

The settlement discussion is scheduled for today’s Budget and Finance Committee, chaired by City Council member Bernard Parks, who, along with two other black council members, Jan Perry and Herb Wesson, strongly favors settling the Pierce case and is rumored to be lobbying other council members to settle. A potential settlement deal may go before city council for a vote as early as Wednesday.

However, possibly blurring the issue are new photos that have allegedly emerged showing Pierce engaged in more hazing at one of his former posts, Station 61. If even more hazing photos emerge, it might be harder for the city attorney’s office to convince council members to forgo trial.

In an e-mail to the Weekly, Delgadillo’s director of communications, Nick Velasquez, declined to discuss the legal matter, responding that it is “the policy of this office not to comment on active litigation due to the potential for violation of attorney-client privilege confidentiality.”

The mayor’s office and council member Parks could not be reached for comment.

City Council members Greig Smith, Jan Perry, Herb Wesson and Dennis Zine told the Weekly late last week that they were unaware of settlement talks.

Smith, who originally voted to settle with Pierce but changed his vote after photos of Pierce hazing came to light, says through spokesperson Matt Meyerhoff that he “has not changed his position since the last vote.” Smith sits on the city’s Budget and Finance Committee along with council members Parks, Wendy Greuel, José Huizar and Bill Rosendahl.

Perry, who voted twice to settle, cryptically says, “I have not been briefed in any matter to indicate that I should change my position.” Wesson predicted that the case would proceed to trial, but said he still favors settling with Pierce.

“The city attorney already admitted we couldn’t win this case,” Wesson insists. “They basically said this is a loser. I don’t want to pay more than what we could have settled for before. But once it goes to court it is in the hands of a jury.”

Zine, in contrast, says, “We sent a message, the mayor sent a message. Why would the city attorney backpedal now? I can’t see this case going anywhere but trial . . . The truth of the matter is Pierce is a prankster and a hazer and doesn’t deserve anything on this case. If Tennie got the $2.7 settlement it would have been a huge miscarriage of justice, obviously in the mind of the mayor too.”

Delgadillo’s office might be motivated, however, by the city’s recent abysmal record in court against firefighters who sue for huge amounts of money. Last month, a jury awarded $6.2 million — the largest in fire department history — to black lesbian firefighter Brenda Lee. The jury believed Lee’s claims of retaliation on the job, even though testimony showed she was a belligerent worker who got into physical altercations with other firefighters. (Lee, who is also represented by Genie Harrison, rejected a $2.5 million offer from Delgadillo last year).

And last spring, Harrison’s law firm won firefighter Lewis Bressler a jury award of $1.73 million based on Bressler’s claim that he was retaliated against and pushed into retirement for backing Lee in her various disputes with her superiors. Moreover, on June 7, LAFD Capt. Frank Lima won $3.75 million after a jury found he was retaliated against by his superiors for refusing to give preferential treatment to female firefighter recruits.

“Many attorneys are afraid to put their case in the hands of 12 strangers,” says David Duchrow, incoming new chair at the California Employment Lawyers Association, a group of attorneys who represent workers in suits against government employers and other employers. “It is a huge risk for both sides.”

He says that huge monetary demands that go before downtown Los Angeles juries often go against the city — and taxpayers who foot the bills. “The general wisdom is that the location is the factor,” Duchrow says. “The downtown court has [a reputation] that has been typically friendly for people with discrimination claims compared to courts in the Valley. Some people believe it is the jury pool. You will get more liberal and more diverse potential jurors downtown.”

Duchrow is, predictably, pulling for Genie Harrison to secure a large payout for Pierce. He says plaintiff employment lawyers like himself “were so outraged that Villaraigosa vetoed the settlement, and they are really pulling for Genie to vindicate that amount, and the only way to do that is to not just match the amount settled for but to exceed it by a lot.”

The Pierce dog-food debacle made headlines last fall when the City Council rubber-stamped Delgadillo’s recommended $2.7 settlement in a 11-1 vote. Only Councilman Dennis Zine voted against it. KFI-AM 640 hosts John Kobylt and Ken Chiampou fanned public anger over the vote, posting online photos of Pierce engaged in hazing.

Mayor Antonio Villaraigosa vetoed the settlement, his first veto of the council. And after an emotional public plea by Pierce on November 28, and a public show of support for him from big-name Los Angeles black leaders, the council upheld the mayor’s veto.

“This is a bigger issue than Tennie Pierce,” says Willis Edwards, the first vice president of the Beverly Hills chapter of the NAACP. “It has to do with the policies and procedures of the city and if they follow the rules.” But Pierce’s emotional Nov. 28 speech to a packed council chambers, at which he claimed that the crew who tricked him into eating dog food was “nine white members” turned out to be blatantly false. The crew was a mix of races and ethnicities, as reported by the Weekly.

The Weekly also found that a taunting incident cited by Pierce was actually led by a black firefighter and that Pierce took part in a hazing incident on October 12, 2004, with his fellow firefighters at Station 5 — just two days before the dog-food debacle.

By the time Pierce appeared before the council with black leaders last fall, he had been paid the equivalent of a full-time salary for about two years but worked less than 40 days. Just two weeks after the dog-food prank, Pierce sprained his back and took a paid two-and-a-half-month injury leave — the first of a lengthy series of paid sick leaves and stress leaves.

Pierce’s initial lawsuit alleged racial harassment and intentional and negligent infliction of emotional distress. After that, Pierce was widely seen within the fire department as having ratted on his colleagues for nothing more than routine horseplay — a big no-no in the loyalty-driven fire department. Then, in June of 2006, Pierce’s attorney added a “retaliation” claim to his lawsuit, with Pierce complaining that he was confronted by firefighters who told him that his lawsuit was “bullshit.” On one occasion, he says, he was taunted by crew members who called him “dog-food boy.”

Last month, Los Angeles Superior Court Judge Mark V. Mooney rejected a motion by the city to dismiss the case, stating, “I think this is a case for 12 . . . citizens to make a decision upon.”

Around the same time, new courts filings emerged that indicate a potentially explosive trial. Among other things, the partial declarations include a claim by white engineer James Dayen, who worked with Pierce, that shortly after the dog food prank, Pierce told Dayen: “Could you imagine if the press found out that these guys fed a black man dog food?” Dayen claims he then replied, “Man, you would own the keys to the city,” and they both laughed. In court papers, attorney Harrison insists that Dayen made both of the statements.

In one particularly unusual court filing, a black firefighter and longtime Pierce family friend is denying that he harassed Pierce out of retaliation after the dog food incident, calling into question key parts of Pierce’s lonely depiction of himself as a harassed firefighter singled out by his colleagues for speaking up.

The black firefighter, Vance Burnes, was accused in court papers filed by Harrison of “persistent” harassment of Pierce, “barking like a dog and asking how dog food tastes” while Pierce attended a class at the Frank Hotchkin Memorial Training Center. But Burnes, in court filings, paints a dramatically different picture, saying his comments were part of the frequent and routine teasing and hilarity that went on between himself and his onetime-close friend Pierce.

According to Burnes, he and Pierce were once so close that he babysat Pierce’s kids, attended his wedding and named his own son after Pierce. In his declaration, Burnes says the two men routinely made fun of one another. Burnes, who was later disciplined over the barking incident, says in the declaration that he learned from two fire department investigators that after he filed his lawsuit, Pierce “denied really even knowing me.”

The court papers also include partial statements by Jorge Arevalo, the Latino firefighter who fed Pierce the dog food.

In the new statements, Arevalo denies he pulled the dog-food prank because Pierce is black. But Pierce’s lawyer Harrison argues that Arevalo has a history of racist statements, including asking African American Captain Gary Alexander: “Why do so many Black people have heart attacks and high blood pressure? Is it because they eat so much fried chicken?” Court papers indicate that the city plans to argue that Alexander did not view Arevalo’s question as racist.

On the night of the dog-food debacle, firefighter Kelly Niles in a previous interview told the Weekly that Pierce spoke to black paramedic Mark Flot about the incident. In new court filings, Pierce admits that he “may have” told Flot that he did not think Arevelo’s prank was racially motivated.

With settlement talks looming, the bizarre tale of what really happened at Station 5 might remain a mystery.